RICHARD DUNCAN SIMONS

1927-

Court of Appeals: 1983-1997

by Marjorie S. McCoy and David E. McCraw

Richard D. Simons arrived at the Court of Appeals in January 1983 as the Court was undergoing one of the most fundamental changes in its history. In 1978, New York had abolished its system of electing judges to the Court of Appeals and instituted a process by which new judges were appointed by the governor. Selected by Governor Mario Cuomo on his third day in office, Judge Simons became only the second Associate Judge to join the Court of Appeals by gubernatorial appointment. When Judge Simons left the bench in January 1997, the bench was entirely composed of appointed judges.

For those concerned that a system based on gubernatorial appointment would place party politics over merit, the selection of Richard Simons provided a compelling counterargument. Governor Cuomo was a New York City Democrat, Simons a Republican judge from upstate Oneida County. The governor, a former clerk at the Court of Appeals and keenly interested in the Court's independence and reputation, reached outside his own political party to select Judge Simons, who had served on the Appellate Division in both the Third and Fourth Departments and been deemed "well qualified" four times by the Commission on Judicial Nomination.

Richard Duncan Simons was born on March 23, 1927, in Niagara Falls, New York, the son of William T. and Sybil Swick Simons. William Simons was an accountant whose family came to America from Scotland, via Canada. He was employed by the Niagara Falls Board of Education as deputy superintendent for many years, and subsequently worked for the Union Carbide Corporation. Sybil Swick, a contralto who studied at Oberlin College but never performed professionally, was of Dutch, Irish, French, and German descent.

Richard Simons received his education in the public schools, initially in Niagara Falls and later in Yonkers, New York, where his family had moved. He played football for his Yonkers High School team. Simons served in the United States Navy from 1945 to 1947 as an Aviation Cadet, and graduated in 1949 from Colgate University where he was a member of the swimming team.

Richard Simons married fine arts student Muriel (Penny) Genung of Yonkers, New York in 1951. In March of the next year, Simons earned his law degree from the University of Michigan Law School. At that time, few law firms scheduled on-campus interviews for prospective employees, and no ready-made structure existed for locating legal employment. Simons, accompanied by his wife, drove clear across the State and halfway back, walking into law firms unannounced, in search of legal employment. Simons accepted the only offer of employment he received, from a small law firm in Rome, New York. In September of the same year, the couple's first son, Ross, was born. Richard and Penny Simons had three more children, Scott (b. 1954), Kathryn (b. 1957) and Linda (b. 1960).

Soon after moving to Rome, Simons involved himself in the local Republican Party, joining a group of young "insurgents" who sought to reform Party politics in Oneida County. The reformers succeeded in winning committee posts, and then the City Republican Chair, the County Republican Committee and the mayorship of Rome. Simons, who had served part-time as Assistant Corporation Counsel for the City of Rome (1955-1958), became the new Mayor's Corporation Counsel in 1960.

Only three years later, riding the crest of the new Republican Party he helped create, Richard Simons was elected a Justice of the Supreme Court for Oneida County, to which he was reelected in 1977. At 36 years of age, Judge Simons was widely believed to have been the youngest person elected to the Supreme Court in New York State in modern times. In 1971, Judge Simons was designated an associate Justice of the Appellate Division, Third Department, and then served on the Appellate Division, Fourth Department, from 1973 until his appointment to the Court of Appeals in 1983. During his Appellate Division tenure, Judge Simons served on four Courts on the Judiciary, a specialized tribunal charged with reviewing claims of judicial misconduct.

Judge Simons won consistent praise and respect from attorneys and fellow judges for his Appellate Division decisions, known for their careful attention to the law and the facts, and for a style that melded legal scholarship with practicality. Indeed, in its disposition of fifteen appeals, the Court of Appeals adopted either the reasoning or the full opinion of Judge Simons in the Appellate Division below. Soft-spoken and polite, Richard Simons maintained a low profile on the Appellate Division bench - at least until 1977 when Chief Judge Charles Breitel selected him to serve on a Court on the Judiciary panel investigating Jacob D. Fuchsberg, an Associate Judge of the Court of Appeals.1

Judge Fuchsberg was thrust into public controversy when the press revealed that he held millions of dollars worth of New York City bonds at the time the Court of Appeals was deciding whether the city's bonding scheme was legal. The bonding issues had been argued before the Court several times. Judge Fuchsberg recused himself from some of these cases, but not all. Chief Judge Breitel appointed Judge Simons and four other judges to the Court on the Judiciary convened to inquire whether Judge Fuchsberg had acted improperly.2 The inquiry was later expanded to include charges that Judge Fuchsberg used law professors to assist him in writing decisions and had circulated draft opinions by other Court of Appeals Judges to a professor he had consulted informally.3

In March of 1978, a four-judge majority of the Court on the Judiciary concluded that Judge Fuchsberg violated the New York State Bar Association's Code of Judicial Conduct and the State Judicial Conference's Rules Governing Judicial Conduct, but the evidence did not support a determination that he was unfit to continue in judicial office.4 The panel concluded that Judge Fuchsberg did not act with fraudulent or corrupt intent, and therefore should not be subject to disciplinary action.5

Judge Simons issued a strong dissent, arguing that the procedure followed by the Court on the Judiciary "satisfies neither this court's constitutional obligations nor protects respondent's right to defend himself upon specified charges at a hearing before a decision is made."6 He further argued that "[t]he evidence presented raises issues going directly to the heart of the judicial system, the impartiality of its Judges and the integrity of the court's decisions,"7 observing that "[t]he public need not always be convinced of the correctness of the court's decisions, but they must always believe in the integrity of the decision-making process."8

In 1983, when Governor Cuomo appointed Richard Simons to the Court of Appeals, Jacob Fuchsberg was still on the Court. Judges Simons and Fuchsberg served together until Judge Fuchsberg left the Court later that year. By all accounts, the two managed to work together without incident, despite the events of five years earlier.

The first appointed Court of Appeals Judge to complete a fourteen-year term, Richard Simons wrote nearly 300 signed opinions for the Court, and was the author of some 60 dissents. His final opinion for the Court, Brown v. State of New York,9 was a landmark. In this high-profile case raising claims of racial profiling, four members of the Court joined Judge Simons in declaring that New York's Court of Claims has jurisdiction to entertain damage claims against the State for official misconduct violating the Equal Protection and Search or Seizure Clauses of the State Constitution. "The point is that no government can sustain itself, much less flourish, unless it affirms and reinforces the fundamental values that define it by placing the moral and coercive powers of the State behind those values,"10 Judge Simons cautioned.

Indeed, the Judge's most notable work came in the area of state constitutional law. As the Supreme Court of the United States moved toward a more conservative construction of the federal Constitution in the 1980s and 1990s, Judge Simons authored or joined other members of the Court in writings defining the scope of rights protected by the New York State Constitution.11 Ultimately, over the course of several decisions, however, Judge Simons articulated his view that the Court of Appeals lacked a coherent methodology for interpreting the State Constitution within the federalism framework.12

Judge Simons approached each case as "a discrete problem to be solved, not an opportunity to advance a political or legal ideology. There was a case to be decided, nothing more and nothing less, and it was the reasoning, not the result, that counted."13 Although a firm believer in stare decisis and the importance of adhering to precedent,14 Judge Simons engineered a major change in New York criminal procedure when his 1990 majority opinion in People v. Bing15 overturned the Court's earlier decision in People v. Bartolomeo,16 to narrow the right to counsel afforded those suspected of a crime. In Bing, Judge Simons observed: "... our right to counsel rules are based on 'common sense and fairness' and are intended to '[breathe] life into the requirement that the waiver of a constitutional right [is] competent, intelligent and voluntary.' But there is little to be said for a rule which is not firmly grounded on prior case law, cannot be applied uniformly, favors recidivists over first time arrestees, and exacts such a heavy cost from the public."17

Judge Simons also distinguished himself in his Court of Appeals writings on the ethics and duties of public officeholders and judges. Three dissents are particularly noteworthy. In Stettine v. County of Suffolk,18 taxpayers challenged the county's collective bargaining agreement with its workers on the ground that municipal officers who negotiated the agreement had a prohibited personal interest in the outcome of the bargaining. Construing General Municipal Law ' 804, Judge Simons observed that "[t]he statute embodies a moral concept as old as the history of mankind, the idea that "'No man may serve two masters.'"19 Judge Simons reasoned that "[t]here are remedies to protect the employees' rights for the short time remaining. Thus, there is no reason why we should . . . ignor[e] the violation of the public trust which occurred in this case and encourag[e] such practices in the future."20

In Matter of Greenfield,21 the Court of Appeals considered whether a trial judge's chronic delay in disposing of matters constituted judicial misconduct. In dissent from the majority's determination rejecting the sanction and dismissing the charge, Judge Simons argued that "[o]ur rules proscribing delay embody the simple truth that the courts, like all public institutions, exist for the benefit of those they serve. If there is one thing that parties appearing in court are entitled to ask of the judicial system, it is that matters submitted to the court be decided. If they are not, the litigants are helpless."22

Later, in People v. Ohrenstein,23 Judge Simons disagreed with the dismissal of charges against two state senators and a legislative employee indicted for using state funds to pay employees whose sole duties consisted of campaign work for Democratic senatorial candidates: "I would have thought the use of public funds to finance the election campaigns of one party and defeat candidates of the opposition was so clearly unlawful that it was not worth discussion. Any other view devalues the democratic process by leaving incumbent legislators free to perpetuate themselves in office at government expense . . . I know of no authority, and the majority cites none, which would support such reasoning. Political activities are private, not public, matters and the use of public funds to pay employees hired for private purposes is unlawful."24

Perhaps the most public and painful moments of Judge Simons' life on the Court came when Chief Judge Sol Wachtler was arrested in 1992. At the time, Judge Simons was senior associate judge, and it fell to him to lead the Court through the immediate crisis, and the months that followed, until Governor Cuomo appointed Associate Judge Judith S. Kaye to succeed Chief Judge Wachtler. Several days after Chief Judge Wachtler's arrest, Judge Simons addressed the Court staff in the historic Richardson Courtroom saying, in part: "When I was a boy my mother had a saying for times like this. She'd tell me to pull up my high tops and start walking. That's what we've got to do. We've got to pull up our high tops and start walking. The reputation of the Court depends upon the principles it stands for and the quality of the work it produces. It doesn't depend upon any one person, it depends upon the work of a group of people. That's where institutional greatness comes from, the combined effort of the many. The judges of the Court are determined that the excellence of this body, that the Chief Judge pursued, will continue."25

As Judge Simons approached the end of his term in 1997, the Court of Appeals became embroiled in a war of words with Governor George Pataki. The governor had taken exception to several of the Court's decisions in which criminal defendants prevailed and won new trials. "The people of New York deserve a Court that is concerned with the rights of victims, not just criminals," the Governor railed in response to the Court's decision in People v. Maher.26 "If there was any question that the Court of Appeals has become a citadel of technicalities, today's ruling should erase all doubts."27

Although Judge Simons believed that a court should speak through its rulings, not through commentary in the press, he decided to step forward and defend the Court's record against the Governor's highly politicized "junk justice" campaign, which characterized as "liberal" certain rulings of the appellate courts. The day before his retirement, Judge Simons publicly responded in an interview with The New York Law Journal: "I don't want to speculate on the motivation for it, but there is no reason to criticize the Court for enforcing or applying statutes the same way we've applied them for years - without change or criticism by the Legislature up until the last year or so." True to his philosophy of the role of courts in government, Judge Simons emphasized that it was the responsibility of the Legislature, not the Court, to change the law.28 Judge Simons's unusual decision to parry with the Governor reflected his concern that unfair criticism would ultimately harm the Third Branch. "If somebody is misconstruing our decisions and telling the public over and over again that we're pandering to criminals, it certainly could weaken the Court."29

During the ceremony marking his 1997 retirement from the Court of Appeals, Chief Judge Kaye described Judge Simons as "an extraordinary Judge. He is a Judge without pretense or ideology. He goes where the law takes him, only there and always there. The subject matter range is boundless but the Simons method is readily identifiable: careful explication of the facts, exhaustive study of the law, and sound application of the law to the facts (excepting, of course instances when we were on opposite sides) in a voice that is direct, clear, authoritative and persuasive. His dedication to, and love of, his craft is manifest in his writings."30

Following his retirement from the Court of Appeals, Judge Simons joined the firm of McMahon and Grow in Rome, where he practices law, handles arbitrations, and serves as a special master and judicial hearing officer. Judge Simons often is retained as an expert on the law of New York. He also serves part-time as Chief Trial Judge and Chief Appellate Judge of the Oneida Indian Nation. Additionally, since retirement from the Court, Judge Simons served as Chairman of the New York State Bar Association Task Force on Court Reorganization, Chair of the New York State Bar Foundation, Director of the Capital Defender Office and Jurist in Residence at Syracuse University College of Law. In January 2000, Judge Simons was awarded the New York State Bar Association's Gold Medal for Distinguished Service, the Association's highest award.

In 2004, interviewed for an oral history on the Court of Appeals, Richard Simons was asked to identify the qualities of a good judge. He responded: "There have been an awful lot of people who have been trying to define that. Certainly intelligence is one. Honesty, patience, industry . . . . I said to some people one time that I thought courage was very important. They thought that was ridiculous because that was not part of a judge's job. Well, I can tell you this: Some decisions don't come easily."31

Progeny

Penny Simons, a teacher and practitioner of the fine arts, died in 1992, while Judge Simons was serving on the Court of Appeals. The Rome Art Center dedicated a studio in her honor. In 1994, Richard Simons married Esther (Esi) Tremblay, a former supervising nurse in the operating room of Manhattan's Columbia-Presbyterian Hospital. Esi Simons was a member of that hospital's early open heart surgery teams.

Of the Simons children, Ross is a businessman in Liverpool, New York and is the father of three children. Scott is an architect in Yarmouth, Maine and has two children. Kathryn is a member of the administrative staff at the Massachusetts Institute of Technology and lives in Somerville, Massachusetts. Linda practices acupuncture in Freeport, Maine. She has one child.

Judge Simons also has two stepchildren: Mark Tremblay a computer analyst in Vienna, Virginia and Cindy Laudent, a special education teacher in Minneapolis, Minnesota.

Id. at 196. Judge Simons continued: "When the law immunizes official violations of substantive rules because the cost or bother of doing otherwise is too great, thereby leaving victims without any realistic remedy, the integrity of the rules and their underlying public values are called into serious question. A damage remedy for constitutional torts depriving individuals of their liberty interests is the most effective means of deterring police misconduct, it is appropriate to the wrong and it is consistent with the measure by which personal injuries have historically been regulated" (id.).

See, e.g., People v. Johnson (66 NY2d 398 [1985] [declining, on State constitutional grounds, to extend the Supreme Court's "totality of the circumstances" test, enunciated in Illinois v. Gates, 462 US 213(1983), to warrantless arrests based on hearsay information, stating "(t)his appeal presents one of those situations in which we believe that the aims of predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens are best promoted by applying State constitutional standards"]) and People v. Bigelow (66 NY2d 417 [1985] [declining, on State constitutional grounds, to apply the good faith exception to the warrant requirement the Supreme Court established in United States v. Leon, 468 US 897(1984)]). In People v. P.J. Video(I) (65 NY2d 566 [1985]) and People v. P.J. Video (II) (68 NY2d 296 [1986] on remand from New York v. P.J. Video, 475 US 868[1986]), Judge Simons articulated his theory of State constitutional adjudication, namely that where a State court is reviewing an action claimed to violate both the Federal and the State constitutions and the language of each is identical, the State court should rule on the Federal clause only, giving the Supreme Court of the United States a chance to also rule on the issue. If the Supreme Court disagrees with the State court interpretation of the federal clause, the latter can then rule on the State constitutional application. In P.J. Video II, Judge Simons also sketched out a framework for the Court's "noninterpretive" analysis of the State constitutional provision under consideration.

See, e.g., Immuno AG. v. Moor-Jankowski, 77 NY2d 235 (1991) (Simons, J. concurring), on remand from Immuno v. Moor-Jankowski, 497 US 1021 (1990): "This Court, as the highest court in the State, is primarily concerned with the institutional function of declaring and applying constitutional and common law principles, authoritatively interpreting statutes and formulating policy on issues of State wide concern. When the Court reviews a question of Federal constitutional law, however, it acts as part of a larger judicial system embracing not only New York but the Nation as a whole. When Federal questions are presented, its institutional functions are subordinated to the Supreme Court and it acts, in effect, as an intermediate court. Notwithstanding this different role, it is important that State courts participate in the Nation's court structure. They have much to contribute to the Supreme Court's determination of Federal law by addressing the issues thoroughly and persuasively and providing local perspectives for the development of constitutional rules. Inasmuch as the Supreme Court is charged with the ultimate responsibility for pronouncing Federal law, however, it should be given the opportunity to accept, modify or reject a State court's determination of what the Federal Constitution requires. Our unnecessary reliance on State law in this case frustrates that process. Under general principles, Supreme Court jurisdiction to review a Federal question fails if the decision of the State court is also based on adequate and independent State grounds" (id. at 260-261 [citations omitted]). See also McCraw, "Doubts About Our Processes": Richard D. Simons and the Jurisprudence of Restraint in State Constitutional Analysis, 13 Touro Law Review 613 (1997) and Simons, When is the New York Court of Appeals Justified in Deviating from Federal Constitutional Interpretation?, 14 Touro Law Review 637 (1997-98).

See, e.g., Simons, The Role of Ideology in the Selection of Appellate Judges, 2005 Hugh R. Jones Memorial Lecture (Albany Law School, September 12, 2005).

76 NY2d 331 ([1990]).

53 NY2d 225 (1981). Judge Simons discussed the role of precedent and stare decisis in The Role of Ideology in the Selection of Appellate Judges, his 2005 Hugh R. Jones Memorial Lecture given at Albany Law School on September 12, 2005. See also People v. Damiano 87 NY2d 477 [1996] [Simons, J. concurring]): "Stare decisis is the doctrine which holds that common law decisions should stand as precedents for guidance in cases arising in the future, that a point of law, once decided by a court, will generally be followed in subsequent cases presenting the same legal problem. The doctrine rests upon considerations of practicality and principle.

From a practical viewpoint, it cannot be seriously argued that a court should reexamine every relevant precedent that has gone before. It could hardly do its work if it did so.... As a matter of principle, stare decisis is accepted for two reasons. First, following precedent enhances stability in the law because the failure of a court to settle on a rule invites perpetual attack and reexamination, with the real possibility that governing rules will change whenever the composition of the Court changes. It is rare that all members of the Court fully agree on a particular subject and it is more important that there be a predictable rule to govern conduct than that the rule be 'right.' Any other course can lead to anarchy as trial courts and intermediate appellate courts, who must apply the law as we declare it, speculate on what our latest view on the subject will be. For this reason alone, Judges have an institutional obligation to respect the doctrine and abide by it. Moreover, the reiteration of arguments against the rule after they have been considered and rejected several times permits an unwarranted inference by the Bar and public that those rules remain open to debate. Further, and most importantly, stare decisis is a rule of legitimacy. Courts, unlike the other two branches of government, do not derive their authority by electoral mandate and they are not expected to respond to the popular will or public emotions. Indeed, their influence rests in large part upon the understanding that unelected Judges are motivated by principle and that they exercise their power evenhandedly, setting aside personal views and extraneous influences to follow precedents and develop the law in an ordered fashion. The concept of legitimacy is fundamental to the exercise of judicial power, for the courts have little to compel adherence to their decisions except the respect accorded to them by the public borne of the integrity of the decision making process. A high court which uniformly adheres to its prior interpretation of a statute in a line of cases only to reconsider those precedents and overrule them in a legally indistinguishable but factually egregious case will surely and deservedly lose its credibility and provoke serious questions about the legitimacy of its processes. Stare decisis is not an inflexible doctrine, of course, and rules long settled but not recently revisited are always open to reexamination if there is some evidence that the policy concerns underlying them are outdated or if they have proved unworkable" (id. at 488-489 [citations and quotations omitted]).

76 NY2d at 350 (citation omitted).

66 NY2d 354 (1985).

Id. at 361.

Id. at 367 (citation omitted).

76 NY2d 293 (1990).

Id. at 306-307.

77 NY2d 38 (1990).

Id. at 55.

Statement of Senior Associate Judge Richard D. Simons to the staff of the Court of Appeals on the resignation/departure of Chief Judge Sol Wachtler (11/16/92) (on file with the Historical Society of the Courts of the State of New York).

89 NY2d 318 (1996) (conviction vacated due to erroneous exclusion of defendant from sidebar conference with a prospective juror).

Quoted in Spencer, Simons Retires, and Court Loses a Calming Intellect, New York Law Journal, January 2, 1997, at 1.